Notes For Oral Argument Before U.S. Court of Appeals, Tenth Circuit

May it please the court, good afternoon. My name is Robert Tiernan. I represent the plaintiffs-appellants in this case.

Let me introduce my clients. Anne Gaylor is president of the Freedom From Religion Foundation, Annie Laurie Gaylor is editor of its publications including its newspaper, "Freethought Today," and Dan Barker is the Foundation's public relations director. Glenn Smith is a retired railroad engineer who used to operate steam engines over the rocky mountains, Lora Attwood is a homemaker, and Jeff Baysinger is a federal government employee.

The complaint in this case alleges that "In God We Trust" as our national motto and on U.S. coins and currency violates the First Amendment of the U.S. Constitution as an establishment of religion.

It alleges that "In God We Trust" has no secular purpose, that its effect is to endorse religion, and that it unreasonably entangles government with religion.

The defendants, U.S. government, et al, filed a motion to dismiss the complaint.

The trial court correctly held that, in ruling on the motion, it must assume all the allegations in the complaint to be true.

It then ignored its own ruling.

The trial court held that "In God We Trust" has a secular purpose, that its effect is not to endorse religion, and that it is not a prohibited entanglement. It refused to let us introduce evidence on any of these crucial issues.

The court relies heavily on two prior circuit court decisions. The first is Aranow v. U.S., decided in 1970 by the 9th Circuit. The second is O'Hair v. Blumenthal, decided in 1978 by the 5th Circuit.

Aranowwas decided before the Supreme Court ruling in Lemon v. Kurtzman which was rendered in 1971. Lemon first established the three prong test of purpose, effect, and entanglement which is alive today. Both Aranow and O'Hair were decided before Allegheny County v. ACLU. Allegheny is the watershed decision on religious displays and symbols. Therefore, neither Aranow nor O'Hair is useful as precedent to decide this case.

"In God We Trust" has never had its day in court and it is time that it did. It has been this country's national motto since 1956 and it is on every coin minted and piece of currency printed since that time.

In its brief, the government argues that there are three Supreme Court decisions which contain language supporting the constitutionality of "In God We Trust."

This is an incorrect characterization. There is dicta1 to this effect in two concurring opinions and in one dissent. These are not statements by the court; they are dicta by individual judges having no precedental value.

If we were given the trial we are entitled to this is among the evidence we would introduce:

1. The history of "In God We Trust" demonstrating that it has no secular purpose.

2. Facts, including a survey, which demonstrate that its effect is to endorse religion. This would include the results of a nationwide survey which shows that over 70% of the population believes "In God We Trust" endorses a belief in God and, therefore, religion.

3. Many other facts including the history of coinage and currency in this country, the fact that, to the best of our knowledge, no other industrialized country of the world encumbers its currency with religious pronouncements.

4. Expert testimony about the intent of the framers of our Constitution to keep government secular and not involved in the business of professing religious beliefs.

It is our position that "In God We Trust" has no secular purpose. The government argues that it does; that the objective is to have a national motto and that this objective makes it secular. This is fallacious. The motive is to have a national motto; the purpose is to have a law mandating "In God We Trust" on coins. The first is secular; the second is religious.

Ford has a plant in Dearborn, Michigan. The motive for building the plant was to provide transportation to the consuming public. The purpose is to build cars.

Looking at it another way, the end of "In God We Trust" is to have a national motto. That may be laudable. The means is "In God We Trust." That is not laudable. It is unconstitutional. This court should not let the end justify the means.

It is also our position that the effect of "In God We Trust" is to endorse and promote religion. That question of endorsement is one of fact, that is, would a reasonable observer consider or not consider it state endorsement of religion. Allegheny and the recent decisions in Capitol Square v. Pinette and Creatore v. Town of Trumbull cited in the government's brief and in our briefs make it clear that this is a factual question. In the concurring opinion in Capitol Square, Ms. Justice O'Connor stated: "The reasonable observer test is like the reasonable man test in torts." Creatore held that the endorsement issue requires "A very fact-intensive inquiry."

The district court was, therefore, wrong in dismissing this case without allowing the parties to explore all the facts.

In reaching your decision in this case, we leave the court with the following thought.

"In God We Trust"

What about "In God We Believe"? Would that be acceptable? Probably not. Yet, trust implies belief plus reliance. Therefore, "In God We Trust" is worse than "In God We Believe."

What about "In Jesus We Trust"? There would be a hue and cry. I believe this court would be very likely to hold "In Jesus We Trust" unconstitutional. And yet, the difference between "In Jesus" and "In God" is not one of a kind, but one of degree. They are both out of the same cloth. It would be odd to say that one is unconstitutional and the other is not.

What about "In Muhammed We Trust"? There would be a greater hue and cry.

What about "In Atheism We Trust"? Another hue and cry.

If "In God We Trust" is acceptable as the district court held, why wouldn't these other ones be equally acceptable?

"In God We Trust" is inaccurate and misleading. It would be accurate to say, "In God Some Trust." It would be more accurate to say, "In God Some Trust and Some Don't."

This is not a nation under God. We have a completely secular constitution which contains a prohibition against religious establishments. Putting religious beliefs on money is repulsive to our constitution. Not allowing us to present the facts supporting our complaint is contrary to accepted procedure. Therefore, we ask that this case be returned to the lower court for a trial. Once that process is completed, we can come back to the appeals court and argue this case based on the facts, not conjecture.

Thank you.

1 For the reader's benefit, dicta are pronouncements by a court or a judge which are not essential to resolving the issues before the court in a particular case. Because they are "asides," they have little or no precedental value.